Alternative Law Journal
’DEJO OLOWU[*] discusses the Reform Act which has liberalised NZ’s sex industry.
Rather than indulging in an ostrich-like approach to a growing socially problematic phenomenon, the 120-member New Zealand Parliament passed the country’s Prostitution Reform Bill into law on 25 June 2003. Despite the volatile public debate that welcomed the introduction of the Bill in September 2000, the Bill secured a narrow 60 votes in favour of its passage and 59 votes against it, thus ending protracted political and moral debates spanning three years. The New Zealand Prostitution Reform Act 2003 came into force on 28 June 2003.
While the moral arguments by right-wing conservative groups against this statute should not be dismissed with a wave of hand, there is no doubt that the Prostitution Reform Act 2003 (NZ) (‘the Act’) represents a landmark legislative intervention in addressing some of the most profound problems arising from an age-long underground industry in New Zealand.
The Act’s purpose is:
… to decriminalise prostitution (while not endorsing or morally sanctioning prostitution or its use) and to create a framework that –
(a) safeguards the human rights of sex workers and protects them from exploitation;
(b) promotes the welfare and occupational health and safety of sex workers;
(c) is conducive to public health;
(d) prohibits the use in prostitution of persons under
18 years of age;
(e) implements certain other related reforms.
The Act has not only liberalised the legal recognition of New Zealand’s sex industry but has also sought to introduce greater transparency into the monitoring of the industry, making elaborate provisions for the documentation of sex workers and other operators of brothels. The unmistakable advantage in this is the introduction of institutional mechanisms for enhancing the effective control and management of the nation’s sex industry and matters related to it: issues of public health; child prostitution; illegal migration; illicit use of drugs; and other criminal acts incidental to it.
Until the introduction of the Act, prostitution or sex work in any form had been outright illegal in New Zealand. The Act repealed key provisions of the Crimes Act 1961 (NZ), notably s 147 (making it an offence to keep or manage a brothel), s148 (making it an offence to live on the earnings of prostitution) and s 149 (making it an offence to procure sexual intercourse between unmarried couples), as well s 26 of the Summary Offences Act 1981 (NZ) (making it an offence to solicit sexual services) and sections of the Massage Parlours Act 1978 (NZ). Leaving no room for uncertainty, s 7 of the Act further provides that ‘[n]o contract for the provision of, or arranging the provision of, commercial sexual services is illegal or void on public policy or other similar grounds’. A particularly dramatic effect of decriminalising sex work is the ability of an abused or exploited sex worker to freely report crimes to the New Zealand police. Under the defunct anti-prostitution regime, the report of an assault or abuse by a sex worker would have meant self-induced surrender to the police for prosecution.
These prohibitions are replaced with a regulatory regime. To streamline the sex industry and keep it within legitimate purview, s 34 of the Act obliges all operators of a prostitution business to obtain a certificate, which under s 40, must be produced on request by a police officer. The procedure for a grant of certificate, disqualification from a grant, waiver of such disqualification, expiry, renewal and replacement, and cancellation of operator certificates are covered under ss 35–39 of the Act.
The Act has implications for how sex workers are viewed, which in turn translates to occupational health and safety protections and the recognition of workers’ human rights and public entitlements. Whereas it had been the usual tradition to ascribe certain stigmatised labels to commercial sex, s 4(1) of the new Act responded by describing all those who engage in various categories of prostitution as ‘sex workers.’ In its bid to integrate the New Zealand sex industry into the nation’s legitimate commerce, s 10 of the Act defines the activities and services of a sex worker as ‘work’ that would entitle them to the benefits of the duties imposed on people in control of a place of work under the Health and Safety in Employment Act 1992 (NZ).
In securing the health and safety of sex workers and their clients, s 8(1) of the Act makes it mandatory for all operators of prostitution businesses to ‘adopt and promote’ measures that would ensure safer sex for sex workers and their clients alike. Under s 8(2) of the Act, failure to do so renders an operator liable to a maximum of NZ$10,000 on conviction. In the same vein, under s 9(1) and (3), every sex worker or client of a sex worker is also obliged to take ‘all reasonable steps to minimise the risk of acquiring or transmitting sexually transmissible infections’. By virtue of s 9(4), any contravention of this provision renders any person liable to a maximum of NZ$2000 upon conviction. The recent conviction by the Christchurch District Court of 48-year-old Daniel James Morgan, on the ground that he took off his condom while having sex with a prostitute, clearly sends the signal that this Act would not only bark but could bite.
As a result of the extensive sexual health provisions under ss 8–10, the New Zealand legislature has facilitated a conducive atmosphere for strengthening the global war against HIV/AIDs. The Act also resolves the the legitimacy quandary that beleaguered the New Zealand Prostitutes Collective’s persistent clamour for safer sex education for New Zealand’s sex workers, prior to the Act. Furthermore, for the first time in New Zealand’s legislative history, s 43(1) expressly provides for the inclusion of three members of the New Zealand Prostitutes Collective, the foremost professional organisation of prostitutes in New Zealand in the eleven-member Prostitution Law Review Committee. This not only legitimatises the sex workers’ organisation as an actor in the New Zealand political arena but also facilitates the participation of workers in matters that directly affect their lives and liberties.
In a number of ways, the Prostitution Reform Act 2003 (NZ) responded to some critical human rights issues pertaining to sex workers in New Zealand that had never been addressed prior to its coming into force.
The Act responds to the global crisis of the trafficking of women for exploitative sexual purposes, by making some incisive provisions to tackle this growing menace in New Zealand. Under s 16 of the Act, it is an offence for anyone to induce or compel another person to provide commercial sexual services. Under s 17 of the Act, a person may refuse to provide commercial sexual services even when such a person had entered into a contract for that purpose. To secure further protection for a sex worker who may be in a quandary under the foregoing section, s 18 guarantees their entitlements under the Social Security Act 1964 (NT) and under the Injury Prevention, Rehabilitation, and Compensation Act 2001 (NT) are not diminished. It might be safe to posit that this is a veritable vindication of the clamour of the New Zealand Prostitutes Collective for the legal preservation of the dignity of all sex workers. An additional safeguard against the incidence of trafficking in human beings for sex purposes is the provision in s 19 of the Act which prohibits the issuance of immigration permits to anyone seeking to come into New Zealand to provide commercial sex services or to operate the business of prostitution.
The human rights protections under the Act extend to the rights of children. Against the background of the incidence of child prostitution in New Zealand prior to the emergence of the Act, ss 20–22 of the Act comprehensively prohibit the engagement of any person under 18 years in the business of prostitution in absolute terms. Section 23 prescribes the penalty of a maximum of seven years imprisonment on conviction for any person who engages or allows anyone under that age to be engaged in sex work. In legislating for the rights of sex workers and the protection of children the Prostitution Reform Act 2003 (NT) has addressed certain provisions of some key international human rights treaties to which New Zealand is a state party.
The changes represent radical symbolic and practical reforms. But has the Prostitution Reform Act 2003 (NZ) achieved or is it achieving its specified purpose? It may be too early to make an absolute pronouncement on the achievements of the Act but it suffices to say that it has significantly demystified the clandestine environment under which New Zealand’s sex industry operated in the past. It has provided a platform for policy formulation and for popular debate, and these will certainly generate the desired analytical, objective, and transparent indices for the supervisory body’s feedback when the Act undergoes its mandatory review in a few years time.
Certainly, the debates about the legitimacy of prostitution as a form of acceptable ‘work’ will continue around the world. However, in nations where the values of genuine popular democratic participation, transparency, and objectivity are treasured, the New Zealand approach to the question of commercial sexual services might offer a pragmatic model — offering a balance between legal imperative and policy option.
[*] ’DEJO OLOWU teaches law at the University
of the South Pacific School of Law, PMB 9072,
Port Vila, Vanuatu.*
© 2006 ’Dejo Olowu
*The author is grateful to Professor Bob Hughes,
Head of the School of Law, University of the South Pacific, for his encouragement.
 See ‘NZ Votes to Legalise Prostitution’ <http://news.bbc.co.uk/1/hi/world/asia-pacific/3019896.stm> at 04 January 2006. For the Prostitution Reform Bill 2000 and its comprehensive history, see ‘Prostitution Reform Bill — A Member’s Bill: As Reported from the Justice and Electoral Committee’, New Zealand House of Representatives, 29 November 2002.
 Prostitution Reform Act 2003 (NZ) s 3.
 Ibid s 48.
 Under s 47 of the Act, the Governor-General is empowered to make regulations concerning these matters. Regulations made under this provision are known as the Prostitution (Operator Certificate) Regulations 2003 (NZ).
 See New Zealand Prostitution Review Committee, ‘The Nature and Extent of the Sex Industry in New Zealand: An Estimation’, April 2005, 18–19, listing the ‘forms of prostitution’ according to the New Zealand Police as ‘licensed massage parlours’, ‘rap/escort parlours’, ‘escort agencies’, ‘private workers’, ‘street workers’, and ‘ship workers’.
 See ‘Condom Conviction’, Vanuatu Daily Post (Port Vila), 16 July 2005, 12; ‘NZ Court Fines Man for Unsafe Sex’ <http://news.bbc.co.uk/1/hi/world/asia-pacific/4685513.stm> at 4 January 2006.
 For background discussion of this global phenomenon, see Susan Tiefenbrun, ‘Women as Sex Workers and an Economic Solution’, (2002) 24 Thomas Jefferson Law Review 161, 166–167; Silvia Scarpa, ‘Universalism and Regionalism: The Synergy to Fight against Trafficking in Human Beings’, (2004) Human Rights Law Review 4, 15. It is noteworthy that in 1979, New Zealand ratified the UN Convention on the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others of 1949.
 Of particular significance here are: art 34 of the United Nations Convention on the Rights of the Child (1989) which seeks the protection of all children from all forms of sexual exploitation or sexual abuse; art 7 of the International Covenant on Economic, Social and Cultural Rights (1966) protecting the right of everyone to the enjoyment of just and favourable conditions of work; art 8 of the International Covenant on Civil and Political Rights (1966) prohibiting servitude or the performance of forced or compulsory labour.
 Under s 42 of the Act, the Prostitution Law Review Committee must review the progression of the Act within its first five years, assess its impact, and consider whether any amendments are desirable in further regulation of the business of prostitution in New Zealand.